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<br />I <br />I: <br />! <br /> <br />IN <br />W <br />W <br />QJ <br /> <br />1959] <br /> <br /> <br />ADJUDICATION IN INTERNATIONAL RIVER DISPUTES <br /> <br />31 <br /> <br />tion if they fail to settle their disputes by agreement.' The present <br />writers, who are currently engaged in seeking to resolve two international <br />river disputes by negotiation,' agree that adjudication can phiy and has <br />played a useful rOle in promoting solution of such disputes. <br />What, it may be asked, differentiates river disputes from other disputes <br />-particularly from those also involving the sharing of a common resource Y <br />Disputes over fishing rights on the high seas have, for instance, not in- <br />frequently been referred to adjudication. Noone, so far as we are aware, <br />has asserted that this has set a bad example. What, then, is peculiar to <br />the problems of sharing the use of the waters of an international river? <br />There are some important differences. In the first place, the geographical <br />position of one riparian often is such that it can adversely affect the rights <br />of others without acting outside its own boundaries. A lower riparian has, <br />for instance, certain advantages, not enjoyed on the high seas, over the <br />shipping interests of an upper riparian or non-riparian; similarly an <br />upper riparian has an advantage over, say, the irrigation interests of a <br />lower riparian. These advantages led in times past to the assertion that <br />the physical might measured the legal right.' Though this view has been <br />discredited," apologists for states that still seek to use their geographical <br />advantage as leverage to strike the best possible bargain look askance at <br />any concept of impartial third-party determination. <br />International river disputes may be distinguished in another way. The <br />common remedy of response in monetary compensation following a breach <br />of an international obligation is rarely adequate in the case of a sub- <br />stantial change in the regime of a river system on which nations depend <br />for their livelihood. A man dying of thirst cannot be revived with mone- <br />tary compensation for his water, even when tendered in advance, The <br /> <br />8 See Principle VI of Resolution adopted by the International Law ASBoeiation <br />(I.L.A.) at ita Forty-Seventh Conference held in -1956 at Dubrovnik, Yugoslavia, quoted <br />below, p. 76, and Principle 2 of Resolution adopted by the Inter-American Bar As- <br />sociation at its Tenth Conference held in 1957 at Buenos Aires, Argentina, quoted <br />below, p. 73. See also note 21 below. In a Resolution on the Uses of the Waters <br />of International Rivers, the 48th Conference of the International Law Association held <br />at New York in September, 1958, unanimously recommended that in case of a failure <br />of consultations to produce agreement within a reasonable time, the riparian states <br />should seek a solution {, in accordance with the principles and procedures (other than <br />consultation) set out in the Charter of the United Nations and the procedures envisaged <br />in Article 33 thereof." Art. 33 of the Charter includes "arbitration" and "judicial <br />settlement.' , <br />On May 17, -1958, the Committee on Uses of International Waters of the American <br />Bar Association (A.B.A.) approved a resolution which upholds the duty of riparian <br />states to refrain from unilateral action in case of disagreement with co-riparians, and <br />supports the U. S. Department of State (see note. 20 below), the Inter-American Bar <br />Association (see note 21 below) and the Committee on the Uses of Waters of Interna- <br />tional Rivers of the I.L.A. (see note 21 below) in their views that adjudication is an <br />appropriate means of resolving international river disputes. See comments on above <br />resolution of _A.B.A. Committee in Senate Oommittee on Publie Works, Lake Michigan <br />Water Diversion, Sen. Rep. No. 2482, 85th Cong., 2d Sess., pp. 15, 24 (1958). <br />4 The Helmand and the Indus river disputes. The writers are in a law firm that is <br />currently advising Iran and Pakistan. <br />IS See note 41 below. 6 See notes 36 and 41 below. <br /> <br />